Supreme Court New South Wales

• Medium Neutral Citation: Gillies v The State of New South Wales (No 2) [2014] NSWSC 1598
• Hearing dates: 6 November 2014
• Decision date: 13 November 2014
• Jurisdiction: Common Law
• Before: Schmidt J

Decision

(1) Mr Gillies' summons is struck out.

(2) The proceedings are dismissed.

(3) Mr Gillies must pay the defendant's costs of the proceedings, as agreed or assessed.

• Catchwords: PROCEDURE - pleadings - notice of motion - ex parte hearing - orders sought under Rule 13.4 of the Uniform Civil Procedure Rules 2005 - alternative orders sought for claim to be struck out and dismissed for want of prosecution - statement of claim not particularised in accordance with Rules - statement of claim struck out - aspects of the claim statute barred - malicious prosecution alleged - elements of malicious prosecution - cause of action untenable - proceedings dismissed - costs
• Legislation Cited: Civil Procedure Act 2005 (NSW); Limitation Act 1969 (NSW)); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: A v New South Wales [2007] HCA 10; 230 CLR 500; Beckett v New South Wales [2013] HCA 17; 248 CLR 432; Darrin Michael Gillies v William Brewer [2014] NSWSC 1198; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339; Gillies v District Court of New South Wales [2014] NSWCA 357; Gillies v The State of New South Wales [2014] NSWSC 1350; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514)
• Category: Procedural and other rulings
• Parties: Darrin Michael Gillies (Plaintiff); State of New South Wales (Defendant)
• Representation: Counsel: Mr D Villa (Defendant); Solicitors: I V Knight, Crown Solicitor (Defendant)
• File Number(s): 2013/370091
• Publication restriction: No

Judgment

1 The plaintiff, Mr Gillies, commenced these proceedings on 9 December 2013. By his statement of claim he seeks aggravated, exemplary and general damages, amongst other things for alleged unlawful arrest, assault and battery by arresting police officers, unlawful imprisonment and for unsuccessful prosecutions terminated in his favour.

2 By amended notice of motion filed in September 2014 the defendant seeks orders under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the statement of claim. In the alternative orders are sought under Rule 14.28, that it be struck out and under Rule 12.7 that the proceedings be dismissed for want of prosecution.

3 Mr Gillies did not appear to resist the orders sought.

4 Mr Gillies' claims result from the laying of various charges against him. In 2006, he was convicted after trial by jury before Solomon DCJ of one of those charges. He was sentenced to a total term of imprisonment of 6 years, 8 months, with a non-parole period of 5 years, commencing on 17 July 2006. His appeal from that conviction and sentence was dismissed (see Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339).

Mr Gillies' pleading

5 Certain particulars of various arrests, the laying of serious charges relating to a number of alleged sexual assaults and various court proceedings including trials which ensued, are provided in Mr Gillies' statement of claim. They also advance other claims of the most serious kind. They commence with an alleged assault on 2 August 2003, by two arresting police officers and include alleged wrongful detainment; malicious prosecution; a home invasion on 10 May 2004; false allegations made against Mr Gillies; police failure to pursue proper investigations; failure by the Director of Public Prosecutions to perform his functions; the provisions of false information in court proceedings; the doctoring of evidence; corruption of identified Crown prosecutors and solicitors and a conspiracy in which it is alleged Solomon DCJ was involved. Mr Gillies also claims that he had been kept in prison for three years unlawfully.

6 The particulars also refer to the trial in 2006 trial where Mr Gillies faced six charges. He was convicted of count 5 and found not guilty of counts 3 and 4. The jury was unable to reach a verdict as to counts 1 and 2. Reference is made to a further trial in September 2009, when Solomon DCJ acceded to a disqualification application, with the result that the trial proceeded before Finnane DCJ. That jury found Mr Gillies not guilty of count 1.

7 Mr Gillies' appearance was mentioned by the Crown Solicitor before the Registrar on 3 October 2014 when the matter was listed for hearing on 5 November 2014. He did not, however, appear at that hearing to oppose the orders sought.

The procedural history of the matter

8 The procedural history of the matter is relevant to the determination of the defendant's application. That appears from affidavits sworn on 24 September and 4 November 2014 by Ms Fox, and an affidavit sworn on 25 July 2014 by Ms Ryan. Both are solicitors who represented the defendant in the proceedings. This evidence established that Mr Gillies' prosecution of his case has not accorded with the obligations imposed on litigants by s 56 of the Civil Procedure Act 2005 (NSW), which establishes the overriding purpose of that legislation to be the just, quick and cheap resolution of the real issues in the proceedings.

9 When the defendant's motion first came on for hearing on 29 September before Hamill J, there was also no appearance for Mr Gillies. He had not filed any evidence or submissions, as had been earlier directed. His Honour, nevertheless, disqualified himself from hearing the matter (see Gillies v The State of New South Wales [2014] NSWSC 1350).

10 The Registrar had given directions on 10 February 2014 in relation to alleged deficiencies in the statement of claim and the service of any proposed amended statement of claim by 14 March. Mr Gillies served that document on 23 March. It was annexed to Ms Ryan's affidavit, but Mr Gillies has never sought to file that document in the proceedings and did not pursue it in response to this motion.

11 On 4 April 2014, Mr Gillies' appearance was mentioned by Ms Ryan. The Registrar directed the defendant to serve its strike out motion and supporting affidavit by 21 April and Mr Gillies to serve any affidavit in reply by 5 May. The motion and supporting affidavit were served on 22 April, but Mr Gillies served no affidavit and did not respond to the motion.

12 Mr Gillies did not appear when the matter was next before the Registrar on 16 May. Further directions were given, which included giving Mr Gillies further time to put on his affidavit evidence by 4 July. The times fixed were later extended by the Registrar on 11 July, when, again, there was no appearance for Mr Gillies. He still served no affidavit evidence and on 20 August there was, again, no appearance by Mr Gillies. That day the Registrar gave further directions and listed the defendant's motion for hearing on 29 September. Still Mr Gillies filed no affidavit or submissions. Nor did he respond after the amended summons filed on 23 September was served on him. Nor did he appear at the hearing on 29 September, when Hamill J disqualified himself.

13 In evidence was email advice that Mr Gillies gave to the Crown Solicitor that he could not attend that hearing, due to a work related accident in which his foot had been injured. When that accident occurred was not revealed.

14 There was no further communication from Mr Gillies. Accordingly, the adjourned hearing on 5 November 2014 proceeded ex parte. He has certainly not availed himself of the opportunities repeatedly given to him to advance his case. I am satisfied that he has been given more than an adequate opportunity to do so.

The statement of claim must be struck out

15 There is no question that Mr Gillies' existing pleading does not comply with the applicable requirements of the Uniform Civil Procedure Rules, which apply to all litigants.

16 Consistently with the overriding purpose specified in s 56 of the Civil Procedure Act, the just, quick and cheap resolution of the real issues in the proceedings, Rule 14.14 requires that a statement of claim must specifically plead any matter which, if not so pleaded, may catch the defendant by surprise and that fraud and facts showing illegality must also be pleaded specifically. A plaintiff must also provide a summary of the material facts relied on (Rule 14.7). While pleadings must be brief, all facts on which the particular cause of action depends, must be specifically pleaded. Matters going to aggravated and exemplary damages must also be specifically pleaded. Further, Rule 14.9 requires that when the effect of a document or spoken words are referred to in a pleading, the effect of the document or words spoken must be stated.

17 The purpose of these requirements is obvious, namely, to give the defendant proper notice of the claims advanced and of the material factual allegations which support those claims, thereby properly identifying what arises to be determined in the proceedings. That assists the parties to identify the real issues lying between them, so that the proceedings can be conducted efficiently and cheaply, to a just result, as s 56 requires.

18 The particulars provided in Mr Gillies' statement of claim do not meet these basic requirements. The particulars are provided in the form of a discursive history of events, interwoven with serious allegations and claims, rather than a particularisation of the basis upon which the various claims made are advanced, so that the relief sought may be granted and damages awarded. Those particulars add to the relief claimed other serious claims, including malicious prosecution, conspiracy and fraud, which are also not properly particularised.

19 Finally, rolled up damages are claimed in the final paragraph of the statement of claim which simply provides:

"As a consequence, the Plaintiff suffered apart from being humiliated, he was subjected to a dangerous and violent environment for three years when detained unlawfully in prison, he has suffered psychological and physical trauma, his personal & family life affected, his business were affected, he was subjected to the inconvenience of having to attend Court on a number of occasions of which he was required to personally finance and he was fearful for his own life and safety as a result of being in jail."

20 It follows that the statement of claim does not provide a proper basis upon which Mr Gillies' case can be understood, let alone responded to by the defendant, or determined by the Court and so must be struck out.

21 The amended pleading which Mr Gillies served on the defendant, but which he has not pursued in these proceedings, does not address these deficiencies. In the circumstances, that need not be addressed further. If it were pressed, leave to file that pleading would have to be refused.

The proceedings must be dismissed

22 Mr Gillies has recently brought proceedings against a number of other persons and entities in this Court. In Gillies v District Court of New South Wales [2014] NSWCA 357, orders were sought by Mr Gillies by summons filed on 18 December 2013 (seeking relief against the District Court of New South Wales, the Director of Public Prosecutions, the Judicial Commission of New South Wales and the Attorney General). The summons was dismissed at a hearing at which Mr Gillies also did not appear, but where he had filed some written submissions. At [43] it was explained that what Mr Gillies was seeking to ensure in those proceedings was the retention of the transcript of evidence and the exhibits relevant to his conviction on count 5 in 2006.

23 It was concluded that Mr Gillies' summons was misconceived in that it failed to disclose any relevant or reasonable cause of action. The material he was seeking had been supplied to him in the appeal papers that were before the Court of Criminal Appeal when it heard and dismissed his appeal against that conviction in 2008. The only further avenue of appeal against that conviction is by way of an application for special leave to the High Court. For that purpose Mr Gillies already had in his possession all the material that would be relevant to any such application and accordingly, his summons was dismissed.

24 The Court of Appeal there described the principles applying to an application such as this by reference to the well known principle stated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. The proceedings may not be summarily dismissed unless Mr Gillies' claim can properly be described as "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "so manifestly faulty that it does not admit of argument".

25 Mr Gillies has not appeared to resist the orders sought. I am satisfied that in the circumstances established the proceedings must be dismissed, those tests being satisfied.

Aspects of the claim are statute barred

26 Much of what Mr Gillies seeks to pursue relates to events which occurred before December 2007, which are statute barred. They include:

• an arrest in August 2003, when he claims to have been assaulted by police and denied medical attention which he required;
• unidentified charges heard in the Local Court in March 2004, of which he was acquitted, apart from an offensive language charge, upon a finding that he had been assaulted by police officers, which he claimed had been instituted in order to stop an unidentified civil action brought "against the prosecution";
• an arrest in May 2004 when he was charged with assault occasioning actual body harm, common assault and maliciously destroy property, for which he was bail refused, an arrest which he claims was unlawful, involving as it did a home invasion by his former partner, a Ms Eastlake, when he was assaulted. He was acquitted of those charges in September 2004 in the Local Court. Mr Gillies also claimed these charges were brought to stop a civil action, without reasonable and probable cause and with malice;
• an arrest on 27 July 2004 when he was charged with 12 counts of sexual intercourse without consent with a Ms Oszko and was bail refused until 3 September 2004, when bail was granted by this Court on payment of security. Six of those charges were withdrawn in December 2004;
• an arrest on 11 October 2004 when he was charged with assaulting Ms Eastlake, with three counts of sexual intercourse with her without consent, and with a breach of an apprehended violence order in respect of a Crown witness and was bail refused. He also claims that he was assaulted by police while then in custody. Bail was granted by the Local Court on 13 October 2004 and the proceedings terminated in his favour in May 2005 at trial. Mr Gillies also claimed that these proceedings were motivated by fear and malice and pursued in the absence of reasonable cause;
• an arrest on 21 January 2005 when he was charged with further offences in relation to Ms Eastlake, which were terminated in his favour when the charges were withdrawn in April 2005. Again, these charges were claimed to have been advanced without reasonable cause and motivated by fear and malice, having not been properly investigated by police;
• an application to have his bail revoked in February 2005 on 8 undefined counts of false allegations concerning Barbara Anne Lane, David McGenniskin and Co Digital Motion P/L;
• an arrest on 5 June 2005 when he was charged with breach of an AVO in relation to a Mr Grant Wilshire, a charge terminated in his favour in November 2005, which Mr Gillies also claimed was not properly investigated and which was maintained in circumstances where it was known that the charge was false, with the result the prosecution was inherently malicious; and
• in July 2005 when a bail review application was made to this Court and refused by Woods CJ at CL.

27 The defendant's case was that any conduct capable of giving rise to a tortious cause of action, including assault, false imprisonment or malicious prosecution, which had occurred before December 2007 was statute barred because it had occurred more than six years before the proceedings were instituted (see s 14(1) of the Limitation Act 1969 (NSW)). It was conceded that this did not include the claims in relation to the charge finally dealt with in the 2009 trial.

28 A cause of action in tort accrues when measurable damage is first suffered, even though further damage continues to accrue (see Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 531). Such a claim must be approached cautiously in interlocutory proceedings such as this (see Wardley at 533).

29 In this case it is relevant that Mr Gillies does not dispute that aspects of his claim are statute barred. That is understandable in circumstances where much of his claims relate to matters unrelated to his conviction in 2006, which occurred long before December 2007.

30 In the result it must be accepted that the claims advanced which relate to events which occurred before 5 December 2007 are statute barred.

Claims relating to the 2006 conviction are bound to fail

31 The defendant's case was that certain of the charges laid against Mr Gillies arose out of a police investigation into allegations of sexual assault made against him by Ms Oszko in 2004. She then provided police with a video depicting Mr Gillies engaging in conduct which became the subject of the charge of which he was convicted in 2006 (count 5). At his later trial the authenticity of this recording was put in issue. On execution of a search warrant other video recordings were seized from Mr Gillies, one of which depicted him engaging in conduct which became the subject of other charges then laid. There was no issue as to the authenticity of this recording at the 2006 trial.

32 Mr Gillies made an unsuccessful application for permanent stay of those proceedings, before the jury was empaneled in 2006. Mr Gillies gave evidence at this trial. Parts of his evidence were not accepted by the jury and on 24 August 2006 Mr Gillies was convicted of count 5. He was later sentenced to a non-parole period of 5 years and a further term of 1 year and 8 months for this offence. He was found not guilty on counts 2 and 3 and the jury were unable to agree on counts 1 and 4.

33 Mr Gillies appealed his conviction and sentence. Both appeals failed. In Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339, the case which Mr Gillies had pursued at trial was described at [24] to have been:

"It was the appellant's case that the sexual relationship between himself and the complainant involved the complainant engaging in behaviour that encouraged his advances and then rejected them in what he described as a yes-no, yes-no pattern. That pattern constituted the dynamics of their relationship and was why he made the suggestion of filming their sexual activity. It was the appellant's case that the complainant willingly participated in being filmed during sexual activity and she had watched some of the video footage and had taken two of the recordings home with her. It was the appellant's case that the sexual relationship involved consensual use of vibrators, dildos, carrots and bottles, and that the complainant enjoyed and actively encouraged the use of such implements. It was the appellant's case that the complainant was angry the appellant was going on an overseas holiday for two weeks without her and had fabricated the complaint against him in retaliation for him leaving her."

34 Mr Gillies' case on the conviction appeal was that there had been a miscarriage of justice. Nine grounds of his appeal related to various aspects of the manner in which his legal representatives had conducted his defence. Other grounds raised the authenticity of the videotape; the trial judge's refusal to stay the proceedings on the basis that part of the videotape had been obliterated, such as to prejudice him by removing a possible defence; and that the videotape should not have been admitted into evidence. The incorrect receipt of other evidence, alleged errors in the summing up and inconsistant verdicts, were also relied on. He also claimed that his conviction was unsafe and unsatisfactory.

35 None of these grounds succeeded and his appeal was dismissed.

36 Count 4 was not further pursued against Mr Gillies, but count 1 was. In relation to this charge there was no issue as to penetration at either the first or second trial, but an issue as to Ms Oszko's consent. The evidence which Mr Gillies had given in the 2006 trial relevant to this charge was tendered at the second trial, as was the video recording. On 16 October 2009, Mr Gillies was acquitted of this charge at the second trial before Finnane DCJ.

37 Mr Gillies is bound by his 2006 conviction and the sentence imposed upon him and by the dismissal of his appeal from that conviction and sentence. In so far as his statement of claim seeks to traverse them, it is bound to fail. Further, in so far as Mr Gillies seeks to recover damages for the time that he served in custody following his 2006 conviction on count 5, his case has no prospects of success. His custody was not unlawful. He was convicted of that offence following a trial by jury. His 2008 appeal from that conviction failed. He has not sought special leave to appeal that conviction from the High Court.

38 As Rothman J recently discussed in Darrin Michael Gillies v William Brewer [2014] NSWSC 1198 at [31] - [34] "in the absence of an order quashing the conviction and sentence, the plaintiff's lawful custody cannot be "damage" in any justiciable sense."

The claims advanced in relation to the charge of which he was acquitted in 2009 are also bound to fail

39 That difficulty infects the claim of damages advanced in the statement of claim in relation to count 1, of which he was acquitted in the 2009 trial. Mr Gillies was not acquitted of that charge at the 2006 trial. The 2009 trial was thus pursued while he was serving the sentence imposed upon him in 2006.

40 One of the allegations made in the particulars provided in the statement of claim was of the existence of a conspiracy with Solomon DCJ to have his Honour preside over that trial. That is not properly pleaded, as I have explained. Even if it were, it is difficult to see the basis of any claim that alleged damage could have been the result of any such conspiracy, given that his Honour did not preside over the trial which took place while Mr Gillies remained in lawful custody before Finnane DCJ.

41 It was candidly conceded for the defendant that it was theoretically possible that a malicious prosecution case in relation to the count 1 the subject of the second trial could be pleaded, given Mr Gillies' acquittal of that charge in 2009. That is also, however, not a claim which is properly pleaded. Mr Gillies has not appeared to explain how it could be.

42 It was also conceded that if such a claim were repleaded and successfully prosecuted, Mr Gillies could conceivably obtain an award of damages for costs incurred in defending that charge, if there were any. Given that in 2009 he was serving a sentence for his earlier conviction, it was not conceded that he could recover other damages of the type claimed in his statement of claim.

43 It was maintained, however, that such a claim, if made, was doomed to fail given that the elements of a malicious prosecution claim required not only a decision in Mr Gillies' favour in the 2009 trial.

44 While the State accepted that it was the proper defendant in these proceedings and vicariously liable for the conduct of the prosecutor, it submitted that the tort of malicious prosecution requires Mr Gillies to establish that the prosecutor had acted without reasonable and probable cause and with malice. That submission must be accepted (see Beckett v New South Wales [2013] HCA 17; 248 CLR 432 at [4]).

45 The pleadings do not provide adequate particulars of these matters, as I have explained. What is relied on shows that the case is untenable.

46 The statement of claim filed provides at 83 - 86:

"83. What all aforementioned material demonstrates, proved and revealed is that Judge Solomon failed to execute his judicial powers when he was asked to rule over the duplicity issue, instead of excluding the material he allowed the tape into evidence in the Plaintiff's 2006 trial.

84. Also, given that the charge being laid and maintained (not once, but twice) were known by Crown Prosecutor Ms Shead together with her instructing solicitor Mr Prince to be false and there was never any evidence that it had been committed follows that the prosecution was therefore inherently malicious towards the Plaintiff.

85. Clearly, the prosecution doctored the video footage of in support of their prosecution brought against the Plaintiff.

86. The prosecution authorities did whatever necessary to keep the Plaintiffs vital piece of evidence surrounding the issue of the videotapes authenticity and the continuity matter from the jury thereby opening up the path to conduct the Plaintiffs 2006 trial in the manner in which it proceeded guaranteeing a conviction and the soul or dominant purpose actuating the prosecutor in pressing the proceedings against the Plaintiff was to stop a civil action brought by the Plaintiff against the prosecution when having regard to all the aforementioned collective charges that terminated in favour of the Plaintiff."

47 Reliance is placed at [81] to a question asked by Finnane DCJ at the 2009 trial, as to how the video recording could establish sexual intercourse.

48 The amended pleadings provided to the defendant, which Mr Gillies has not sought to pursue, claimed:

"93. The Police unreasonably failed to investigate, or to investigate properly, any relevant matter that the police was or ought to have reasonably been aware of, that suggested that the Plaintiff in the circumstances, was not guilty, thereby, the proceedings should not have been brought.

94. Given that the charge being laid and maintained were known by the Prosecution Authorities to be false follows that the prosecution was therefore inherently malicious towards the Plaintiff.

95. What all aforementioned material demonstrates, proved and revealed is that Judge Solomon failed to execute his judicial powers when he was asked to rule over the duplicity issue, instead of excluding the material he allowed the videotape into evidence in the Plaintiff's 2006 trial."

49 This amendment does not cure the problems with the current pleadings.

50 In any event, Mr Gillies has not pressed this pleading. He has not sought to amend the current pleading, to pursue a properly pleaded malicious prosecution case. Nor has he advanced any evidence or submissions as to any basis upon which such a case could be pursued. All that he has pointed to in the particulars provided in the statement of claim filed is a question asked by Finnane DCJ early in the 2009 trial, as to whether the video recording in evidence was capable of establishing sexual intercourse. That is incapable of establishing a malicious prosecution.

51 Malicious prosecution cases are difficult to establish, given the forensic difficulty of proving a negative. Identification of the alleged prosecutor is also an important element of the tort, as explained in A v New South Wales [2007] HCA 10; 230 CLR 500 at [36]. In an action for malicious prosecution, it may be a complainant, rather than a police officer who lays an information or signs a charge sheet, who must properly be regarded to be the prosecutor. Accusations of sexual offences was given as an example, because the capacity of a police officer to verify information and form an opinion about where the truth appears to lie, in a practical sense in such cases, was very limited, because what has to be assessed is uncorroborated allegations of private sexual misconduct, which, it was observed, are notoriously difficult to test.

52 In this case, it must be considered that what was available to the prosecutor included video recordings of the alleged assault, which became exhibit B at the 2006 trial and an exhibit at the 2009 trial, as well as Ms Oszko's complaint and later, her evidence. That explains no doubt the concession that the defendant was vicariously liable for the prosecutor in this case.

53 That, however, raises other practical difficulties for the proof of this tort, in relation to the charge of which Mr Gillies was acquitted.

54 In A v New South Wales it was observed at [118]:

"118 Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis."

55 Contrary to the particulars provided in the statement of claim, It was only exhibit A, the video which depicted the events which became the subject of the charge of which the plaintiff was convicted in 2006, about which a question of authenticity arose. There was no issue in relation to the authenticity of exhibit B, the recording which related to the charge pursued at the 2009 trial. That and other material was available to the prosecutor in forming an opinion in relation to the pursuit of the 2006 trial, as was the evidence at the 2006 trial, in relation to the pursuit of the 2009 trial.

56 As to malice, that is, acting for purposes other than the proper purpose of instituting criminal proceedings, it was explained in A v New South Wales at [55] that such purposes include, but are not limited to, purposes of personal animus. Even in such a case, however, an action for malicious prosecution does not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying the charge was proper, and would have been objectively assessed as warranting the laying of a charge.

57 It is relevant that Mr Gillies has not claimed that the material available to the prosecutor could not have provided the prosecutor with a proper basis for forming an opinion that there was a proper case for prosecution.

58 As to the element of reasonable and probable cause, that requires an examination of both what the prosecutor made of the material available and what the prosecutor should have made of it. That requires consideration of the state of affairs when the prosecution was commenced or maintained, having regard to the material then available for consideration.

59 The problem with this element of the tort is the existence of the video footage, exhibit B, whose authenticity was not in issue and of Ms Oszko's complaints and evidence. It was only the video relating to the charge of which Mr Gillies was convicted in 2006, which was claimed not to have been authentic. That claim was pursued on appeal. It failed, the Court of Criminal Appeal concluding at [77] - [78] in relation to the authenticity of the tape and the refusal to grant a stay of the proceedings:

"77 The trial judge held:

"I believe I can properly draw the inference that it was the accused himself who over recorded the activities contained in activity A. However, even if I could not come to that conclusion I am satisfied that the absence of the evidence does not prevent the accused having a fair trial. That being the case I will not stay the proceedings. I go one step further and say that even if I had found that the accused's opportunity to have a fair trial had been significantly reduced by the absence of the evidence I still would have had to consider the public interest in relation to the matter."

"78 His Honour's conclusion was well open to him. As he observed, the complainant was available to give evidence and could be cross-examined as to the type of sexual behaviour she engaged in with the accused and the manner in which she gave her consent to sexual activity. Furthermore, the appellant was available to, and did in fact, give evidence on the issue of consent. Whilst the appellant's case would have been stronger if the obliterated material did exist and was as represented by him, this did not prevent a fair hearing being accorded to him and the situation did not constitute such exceptional circumstances as to justify the use of the power to grant a permanent stay of proceedings. His Honour ruled that the videotape should not be excluded pursuant to s 137 of the Evidence Act."

60 What Mr Gillies claims in the statement of claim is inconsistent with these conclusions. The 2006 jury did not acquit Mr Gillies of the charge later pursued at the 2009 trial. It was consent, not sexual intercourse which was also in issue in relation to that charge.

61 The transcript of the 2009 trial and the evidence given by Mr Gillies at the 2006 trial, which was led in evidence at the 2009 trial were tendered by the defendant on this motion. They establish that Finnane DCJ's question was answered by reference to evidence which Mr Gillies had himself given at the 2006 trial about this charge. In the result, penetration, that is sexual intercourse, was not in issue in either trial on this count. That was put beyond argument by the cases which the parties later advanced in their submissions and by Finnane DCJ's summing up. It was the giving of Ms Oszko's consent and what Mr Gillies understood as to her consent, in relation to the admitted sexual intercourse the subject of this count, which was in issue at both trials.

62 It follows that Finnane DCJ's question is incapable of establishing that the prosecutor had acted without reasonable and probable cause and with malice, even if a malicious prosecution claim were to be properly pleaded. Mr Gillies has not taken the opportunity to explain any other basis upon whether he could seek to advance such a case.

63 In the result, on the material, I am satisfied that not only should the statement of claim be struck out, but that the proceedings should be dismissed.

64 I, too, note however that this decision permits Mr Gillies, should he wish, to make an application in relation to the judgment, in accordance with Rule 36.16 as discussed in Gillies v District Court of New South Wales at [6].

Orders

65 The usual order as to costs is that costs follow the event. That should, in these circumstances, be an order in favour of the defendant.

66 For those reasons, I order that

(1) Mr Gillies' summons is struck out.

(2) The proceedings are dismissed.

(3) Mr Gillies must pay the defendant's costs of the proceedings, as agreed or assessed.

**********

Decision last updated: 13 November 2014